Anyone interested in seeing how a very smart judge can write the equivalent of a treatise in nine pages should read Frank Easterbrook's opinion in National Rifle Association of America v. City of Chicago. It is a truly remarkable performance.

The ostensible (and actual) issue before the Court (a pane of Easterbrook, Posner, and Bauer) is whether Heller should be read as incorporating the Second Amendment against states (or, in this case, the City of Chicago). One Circuit, the Second, has held no, in an opinion joined by Judge Sotomayor. Another, the Ninth, did hold that the Second Amendment was incorporated. So what did the Seventh Circuit do?First, it is worth noting that the case was argued on May 26 and decided on June 2. This is quite astounding in itself, suggesting very powerfully, as is argued in the opinion itself, that the panel found near-frivolous the claim that it was empowered to apply the Amendment against the states. The reason is, as the opinion elaborates at length, the insistence by the United States Supreme Court that it and only it is empowered to overrule past precedents clearly on point, whatever the current strength of those precedents. Thus the Circuit notes that three opinions (the most recent in 1886) clearly and unequivocally hold that the Amendment limits only the national government. As if this isn't enough, they quote footnote 23 of Heller, which acknowledge the reaffirmation in the latter two of these cases the holding in Cruickshank "that the Second Amendment applies only to the Federal Government."

So why doesn't it follow the trail blazed by the Ninth Circuit panel, which argued that these earlier cases rejected only one particular argument and not the claim accepted by that Circuit? "If a court of appeals could disregard a decision of the Supreme Court," Easterbrook writes, "by identifying, and accepting, one or another contention not expressly addressed by the Justices, the Court's decisions culd be circumvented with ease. They would bind only judges too dim-witted to come up with a novel argument." As it happens, I don't find the Supreme Court's authoritarianism with regard to its unique ability to inter what are clearly anachronistic precedents at all attractive, but if one takes the doctrine seriously, as the Seventh Circuit either does or professes to do, then it seems to me that their argument is clearly correct. Thus they endorse the Second Circuit decision and, along the way, make it far harder for political conservatives--unless they want to describe Easterbrook and Posner as apostates--to denounce Sotomayor for following extraordinarily clear doctrine on the point.

(Incidentally, I think there is some reason to believe that the panel may in fact believe that the doctrine makes sense. Thus it writes that "If a court of appeals may strike off on its own [as the Ninth Circuit did], this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision." What is interesting is what they mean by "ripe for decision." We know that Richard Posner basically disdains the notion that one can treat the Supreme Court as a "court of law." So does "ripeness," in this context, simply mean, perhaps with a tip of the hat to Alex Bickel, that we leave it up to the political judgment of the Supreme Court when it is timely for its own intervention with regard to a political hot potato? Quite frankly, I'd far rather that Judge Sotomayor be examined on this question than on more substantive doctrine (do you like Roe? Do you support Heller?) where she will obviously make sure that she has nothing truly interesting to say. The Supreme Court's control over its own docket is really quite astonishing, in many ways, including enhancing the ability to decide on rawly political grounds whether or not to take any given case in the first place. I'd be very curious to know what Judge Sotomayor, as the most experienced federal judge to be nominated for the Supreme Court I believe in our history, if one adds together her district and circuit judging, thinks of the way that the Court has exercised this low-visibility, completely discretionary authority with providing whatever "guidance" we think the Court should in fact provide to the constitutionally "inferior" courts.)

Where things get even more interesting, though, is Easterbrook's well-founded statement of doubt as to whether the Supreme Court is in fact prepared to overturn the earlier non-Incorporation cases. As he notes, the Court has firmly rejected Hugo Black's "every last word" theory of incorporation in favor of "selective incorporation." But on what basis does the Court (or any court) "select"? At that point Easterbrook noted that the Ninth Circuit, quoting Washington v. Glucksberg, asked if "the right to keep and bear arms is 'deeply rooted in this nation's history and tradtion.'" At the very least, this requires judges to pick and choose among aspects of the Bill of Rights on the basis of highly debatable, often tendentious, claims about our "history and tradition." As Easterbrook writes, "'Selective incorporation' . . . cannot be reduced to a formula."

So, should the Court actually grant cert in either the Seventh or Second Circuit case--it is almost literally inconceivable that they would do so in the Ninth Circuit case, since that Circuit, after "incorporating" the Amendment, promptly went on to say that it didn't prevent Alameda County from refusing to rent public property for gun shows--we would have the enjoyable spectacle of watching Scalia and Thomas try to figure out what is sufficiently rooted to be incorporated. It occurred to me while reading the opinion that both of these Justices joined the Court well after the heyday of incorporation, selective or otherwise. Indeed, Edwin Meese was making speeches during the 1980s attacking the idea of incorporation, and one might assume that either or both of these Justices were sympathetic to Meese's attack.

Judge Easterbrook notes that one might think that the right to trial by jury is part of the American tradition, yet it is notoriously true that neither the grand jury provision of the Fifth Amendment nor the petit jury provision of the Seventh Amendment has been incorporated against the states. There may be very good reason for this, but the reasons ultimately sound, dare one say it, in a "policy choice" rather than any plausible citation to the barebones text or original history of the sacred document. Indeed, the opinion notes that "the best way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate." Take that, Nino (a former colleague of both Easterbrook's and Posner at the University of Chicago Law School)! Is there any doubt that the panel is basically endorsing Fourth Circuit Judge J. Harvie Wilkinson's lacerating attack on Heller as betraying "judicial restraint" and instead serving as a "conservative" analogue of Roe? (Of course, Judge Posner, no inferior polemicist himself, delivered his own withering attack in the pages of the New Republic.)

But wait, there's more. The opinion concludes by quoting Brandeis's hoary chestnut about states as laboratories of experiment, thus throwing the "federalism" gauntlet before, say, Anthony Kennedy, who often writes of the "dignity" of states and the necessity of federal courts to protect that dignity against those who would unduly limit state autonomy. Thus the penultimate line of this remarkable opinion: "Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon."

Moreover, Judge Easterbrook (and his colleagues) note that any incorporation of Heller, assuming one takes Scalia's opinion truly seriously, means that every rejected self-defense claim suddenly becomes a constitutional issue, since the basis of Scalia's opinion is the hitherto unrecognized fundamental constitutional right of self defense. Some states have limited that right, for example, by requiring "retreat when possible" or "to use non-lethal force when retreat is not possible." Are such limitations now unconstitutional? If not, why not, if one both takes Scalia's opinion seriously and believes that it applies against the states? Chief Justice Roberts dissented this past week in Caperton. the "judge-buying" case, on the ground that it will open the floodgates to litigation by every frustrated loser in any given case. Maybe that's true, maybe not. But if one is concerned about such floodgates, then incorporation of the Second Amendment would seem to assure at least as many new constitutionally-based cases as Caperton. So perhaps Roberts will be less eager to incorporate than some of his conservative admirers think. Who knows?

The Court's moderates--I am hesitatant to call them "liberals"--might ordinarily be expected to endorse incorporating the Bill of Rights, but does anyone seriously believe they will do so in this case? Won't they happily embrace "selective incorporation" and suggest that the Second Amendment has little to do with the "ordered liberty" endorsed by Justice Cardozo in Palko v. Conn., which (in)famously refused to incorporate the double-jeopardy clause against the states.

In any event, anyone who enjoys good legal prose by a judge operating at the top of his game should read the Easterbrook opinion.

The best nine page opinion ever written? Sandy, no one could ever accuse you of hyperbole.

Seriously, the Easterbrook opinion was a more than slightly disingenuous exercise in avoiding making a decision.

Easterbrook did not even address NRA's primary argument and the basis for the Ninth's incorporation decision: Neither Cruickshank or Presser are binding precedent on the issue of whether the 14th Amendment incorporates the 2d against the States because the issue was not raised in either case nor did the Courts rule upon it. Cruikshank and Presser simply cited pre 14th Amendment precedent to hold that the Bill of Rights on their own do not apply to the states.

In a later case, Miller v. Texas, the appellants did raise a 14th Amendment incorporation issue. The Supremes started off by citing Cruikshank and Presser for the proposition that the Second Amendment on its own does not reach the states and then declined to consider the separate issue of 14th Amendment incorporation because the Appellants failed to raise the objection during trial.

If they felt so inclined, the Seventh Circuit could have ruled on this issue. However, I am actually pleased that they declined to do so because it creates a conflict with the Ninth for cert in a case with a favorable set of facts.

Despite our resident LLB*'s salivating over the conflict in Circuits, SCOTUS may be reluctant to grant cert, as least by the 5-majority in Heller, because of potential embarrassment about where incorporation might lead. In fact, the 4-minority might grant cert to stick-it to the 5-majority. Just think of the possible Million Man Second Amendment March on Washington, D.C., carrying, concealed and open.

Prof L: Please forgive me for using your thread to raise another issue, one on which I would love to see you or someone else post: the free speech issues being raised about media personalities - I hesitate to use the word 'journalists :-) - who target people such as Dr. George Tiller for attack. I have a post of my own on some of the moral issues, but I think there are really ineresting legal/political issues worth discussion.

Again, please forgive the OT intrusion. I'm relatively new at all this and do not want to overstep the bounds of blogging civility.

the free speech issues being raised about media personalities - I hesitate to use the word 'journalists :-) - who target people such as Dr. George Tiller for attack.

Under current law (which is now 40 years old), there is no issue. Simplifying, unless the speech constitutes an incitement to imminent harm, it's protected. The case you want is Brandenburg v. Ohio, and the Wikipedia discussion of it is here.

" We know that Richard Posner basically disdains the notion that one can treat the Supreme Court as a "court of law.""

Heck, he disdains the notion that one can treat any court of law as a "court of law".

The panel either found the claim frivolous, OR didn't bother to engage the arguments before it. I think the latter.

"Indeed, the opinion notes that "the best way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate.""

But, of course, what the 2nd amendment means, and whether it's incorporated, has diddly squat to do with that relation. The constitution is perfectly capable, if it's going to be held to actually MEAN anything, of meaning something foolish. If you're determined not to let it mean something foolish, you've already resolved that you're going to substitute your own judgement of what's wise for the highest law of the land.

Something I gather Posner is quite comfortable with doing.

But I expect you're right about the Heller minority on the Court. Liberals do not have a record of favoring incorporation, they have a record of favoring incorporation of rights they approve of. That's the whole point of selective incorporation, to give rights the justices happen to not like short shrift. Otherwise they'd have just admitted Slaughterhouse was wrong, and that the 14th was intended to achieve non-selective incorporation of the Bill of Rights.

I don't keep tabs on opinions based upon page length, so I can't say that this was "The best nine-page opinion ever written." But it is well written, with great logic - and wit. It would be amusing, if cert is granted "prematurely," to consider how the Justices might challenge Easterbrook's opinion without challenging SCOTUS's own decisions limiting the roles of the lower Federal Courts, especially Courts of Appeal. SCOTUS has made it clear that it is the "Big Daddy" and will not permit the Courts of Appeal - as opposed to the states per Brandeis, J - to serve as laboratories to experiment in ignoring decisions of SCOTUS.

Our resident LLB* says:

"Seriously, the Easterbrook opinion was a more than slightly disingenuous exercise in avoiding making a decision."

But he ignores that in actuality a decision was indeed made, following SCOTUS decisions. Let's wait and see whether the Heller-5 adopt our resident LLB*'s critque.

By the Bybee, what about a Million Man Second Amendment March on Washington, D.C., carrying, concealed and open to convince SCOTUS to incorporate? The thought might be scary to the Heller-5.

The constitution is perfectly capable, if it's going to be held to actually MEAN anything, of meaning something foolish. If you're determined not to let it mean something foolish, you've already resolved that you're going to substitute your own judgement of what's wise for the highest law of the land.

The people who wrote it or passed it or ratified it or the people who voted for the people who wrote it or passed it or ratified it may also be of the opinion that it shouldn't mean something foolish. And of course I may have an opinion as to what these people actually thought about such foolishness, which is of course my judgement of what's wise for the considered interpretration of what is was these people did (or would have thought). And from there, it's turtles all the way down.

Many "conservative" jurists value precedent and state and local powers more than they do the actual text of the Constitution. This opinion falls in the former category.

Shag from Brookline said...

Brett says: "Liberals do not have a record of favoring incorporation, they have a record of favoring incorporation of rights they approve of."

And the proof of this is ...?

Read the pre Heller Circuit decisions on incorporating the Second Amendment.

What is the record of conservatives on incorporation?

Not good. As with Easterbrook, many of them bind themselves to plainly erroneous or inapposite Reconstruction Era precedent.

In my preferred world, a heavy majority of the Supremes would resurrect the P&I Clause as they did the Second Amendment from the graveyard of judicially murdered provisions of the Constitution and hold that the Bill of Rights is incorporated against the States in total.

At minimum, the Heller majority need to find the Second protects a fundamental right and selectively incorporate it.

"The people who wrote it or passed it or ratified it or the people who voted for the people who wrote it or passed it or ratified it may also be of the opinion that it shouldn't mean something foolish."

Indeed, and they put that belief into effect by writing and ratifying a document that they didn't THINK was foolish. Not a document which would magically never be viewed as foolish by folks who didn't share their outlook.

If you can't read a document written by somebody you disagree with, to mean something you disagree with, you're not reading. You're spouting free verse with the document as a prop for your performance.

If the authors of the 14th Amendment had desired or meant to incorporate the first 8 Amendments of the Bill of Rights to apply to the states, it could have done so in a simple, specific way. (One doesn't have to have expertise in contract law to know how to do so.) But they did not choose that route. Since 1868, the issue of incorporation under the 14th Amendment has surfaced a number of times and SCOTUS has addressed this sparingly, without incorporation becoming either a liberal or conservative Justice issue/view. 140+ years and SCOTUS decisions have not as yet incorporated the first 8 Amendments to the Bill of Rights into the 14th Amendment.

Perhaps if the 14th Amendment had specifically provided for incorporation of the first 8, that might have been considered too limiting by the authors and ratifiers. So perhaps the selection of "privileges or immunities" was seen as more broad, more permissive, not limited to the first 8. There is or may be, of course, disagreement on determining such "privileges or immunities" whether as determined in the timeframe of 1868 or as changes come about over time. (Yes, I'm getting back to originalism versus living constitutionalism, but only as a tease for now. I just finished Jamal Greene's "Heller High Water? The Future of Originalism" available via SSRN at:

http://ssrn.com/abstract=1413801

and it's red meat to be read.)

By the Bybee, our resident LLB* wants SCOTUS to " . . . hold that the Bill of Rights is incorporated against the States in total." Just how might that work out with the 9th and 10 Amendments? Also, I wish he would stop referring to the "P&I Clause" instead of the correct "P or I Clause." I am aware that there are humorous legal analyses of the differences between "and" and "or" as well as particularly "and/or" textually speaking. (Who remembers the song "Conjunction Junction, What's Your Function"?)

The speed of this opinion is notable, I guess, but bloggers write opinions almost half as long on a daily basis, without help of law clerks. Also, the issue is one of those ready made jobs that they probably had notes on ready to apply when necessary. Besides, these guys love to write. They can write these things in their sleep.

As to incorporation, other than the 2nd and 7th, the former just a matter of time given the nature of Heller (focusing on pre-existing individual rights), what hasn't been incorporated? The 3rd? The only thing that comes to mind, maybe, is the fines clause, treated as basically a due process matter.

they quote footnote 23 of Heller

This was cute really. It selectively quoted footnote 23. How about this part:

we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases

The 9th Cir. actually did so engage. Given Heller particularly, it is not way "frivolous" (open to debate? somewhat, shudder, 'activist,' sure) to determine -- following an inquiry "required" by Supreme Court cases, to treat gun ownership different from civil trials. See above.

I question if the 'inquiry' was applied by the 7th Cir. which appeared to treat the matter as rational basis review. I don't know, since it didn't even mention the point, since it selectively quoted F23. This is bad pool, isn't it?

[Sotomayor's panel had a more bland opinion, one that did not even involve a gun, that avoided all this all so cute stuff; it didn't read like a law review article by someone a bit too full of himself, but I did not find this a problem.]

One reason why civil trials is a special case is the complexity of the matter -- see also Art.III which protects trial by jury in criminal cases. But, Heller underlines -- to some people's annoyance -- that the right in question is open to much regulation.

So, actually, the SC very well might grant cert in more than one case here to underline that incorporation here allows some state discretion.

The CA decision underlines that incorporation is not so radical a move, a p.r. matter that CJ Roberts and others might like. In fact, the libs might as well, to emphasize Heller is of limited scope.

Shag, have you read Prof. Akhil Amar's writings on the ratification of the 14A, which suggest the framers did intend by the language to incorporate the BOR, the open-ended language also applying to other rights as well?

There are other recent articles on incorporation and perhaps more to come before SCOTUS rules on incorporation definitively, assuming it ever does. And if cert is granted on this Second Amendment dispute between the Circuits, we may get the benefit of even more than the 71 briefs filed in Heller. Thus, this continues as a learning process for all of us. Any suggestion that the issue is simple is too simplistic. After all, in the 141+ years since 1868 SCOTUS has yet to settle the question of incorporation as it relates to the Bill of Rights or otherwise.

The NYTimes National section yesterday (6/17/09) featured "Conflicting Rulings on Guns Open Way to Supreme Court Review" by John Schwartz discussing the conflict of circuits. Schwartz also has a companion piece "In Gun Case, Peers Support Sotomayor." I had not been earlier aware that the 2nd Circuit decision did not involve guns but a NY "state's ban on possessing chukka sticks, a weapon used in martial arts made up of two sticks joined by a rope or chain." I am of course aware that the 2nd Amendment's "arms" is not limited to "firearms." There are a multitude of "arms" that are not "firearms." Heller focused upon guns. How broad is Heller's reach at the Federal level beyond "guns" or other "firearms" with respect to other forms of "arms" for self-defense in a home? States have laws limiting many types of "non-firearm" weaponry. Would incorporation open the door to declaring such limitations unconstitutional, both in homes and outside?

I had referenced in a comment above Lawrence Rosenthal's "Second Amendment Plumbing After Heller: Of Standards of Scrutiny, Incorporation, Well-Regulated Militias, and Crimininal Street Gangs." While this article is available via SSRN (as noted in my earlier comment), it was published in The Urban Lawyer, Vol. 41, No. 1, Winter 2009. Pages 6 to 48, Part I. "The Imperiled Case for Gun Control" focuses upon issues of gun control addressed primarily by states and municipalities, with extensive references and statistics. Part II. "The Originalist Case for Second Amendment Incorporation" runs from page 48 to page 78. Part III "Standards of Scrutiny and Incorporation" runs from page 78 to page 90. Part IV Conclusion runs from page 90 to 92.

Rosenthal's and other post-Heller articles may apply quite a bit of pressure on the Justices in considering whether to grant cert on the 7th Circuit decision. The factors to be considered by SCOTUS could be overwhelming and result in case by case limitations on 2nd Amendment rights rather than laying down rules that may be readily implemented by lower courts. Perhaps Sandy's comment in the NYTimes that cert might not be granted at this time may prove to be true. As I have commented before, surely there will be more than the 71 briefs filed in Heller if cert is granted.

Some suggest that when applied to the states, the privileges or immunities route might be an ideal way to go. I don't quite see five justices interested in such doctrinal development.

Still, it seems to me apt to not be tied to the 2A. For instance, some of the literature speak of two strands: a common law self-defense right and a militia related right, only the latter directly tied to the 2A.

The dissent in the 1980s 7CA handgun case, Quicili v. Morton Grove (talked about in the Caroline Kennedy co-authored book on the Bill of Rights) focused on the right to privacy. That is, the right to defend the home. Not the Second Amendment as such.

The NRA is often concerned with hunting, but as Aynette v. State, an important 19th Century case cited by Miller, hunting very well might not have anything to do with the 2A. Ditto one might add some other uses of guns. Likewise, the rights of freed slaves, and equality, clearly factors in if we apply the BOR to the states.

Basically, if the SC applies a "liberty interest" of personal arms ownership to the state (the likely route being due process incorporation), it very well would be ideal if the backing was diverse. Perhaps, they can have Kennedy write the opinion.

Thomas can write a concurrence on how privilege or immunity would be the best route. He supported that in the past, e.g., Saenz v. Roe.